“CHANGE IN THE LAW” JUSTIFIES EXTENSION OF TIME: DENTON CONSIDERED IN THE COURT OF APPEAL

The Denton principles were considered by the Court of Appeal in QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413.   The fact that a subsequent judgment of the Supreme Court changed the law was of considerable importance.

THE CASE

The applicant had been refused permission to issue judicial review proceedings on the basis, among other reasons, that the application was not issued promptly and not within three months of the order being made.  The initial decision had been made in February 2017. In June 2017 the Supreme Court gave  a judgment that was favourable to the applicant’s case and arguments. The applicant’s solicitors sent a pre-action letter in July 2017 and issued an application in September 2017. That application was, initially, refused on the basis it was too late.  The Court of Appeal considered the Denton principles and held that, on the facts of this case, it was appropriate to grant an extension of time.

THE JUDGMENT

    1. Only four days before the Applicant was deported on 28 February 2017, Irwin LJ refused an application to restrain the Applicant’s removal, on the basis that it was not arguable that his removal could breach article 8.
    2. Mr Gill submitted that Irwin LJ was at fault in not considering specifically the application to amend the grounds of judicial review to include a challenge to the decision to certify on 10 February 2017. However, I do not see any force in that. Irwin LJ had before him evidence of the then-current position with regard to the Applicant and his family, so far as their family life was concerned; and, on the basis of that evidence, he concluded that the Applicant’s removal would not breach article 8.
    3. However, Irwin LJ made that decision on the basis of the law as it was understood prior to the Supreme Court judgments in Kiarie & Byndloss, which were not handed down until four months later. I am afraid I cannot agree with the Deputy Judge’s view that Kiarie & Byndloss is irrelevant to this claim, or that this claim is plainly distinguishable from that case. Of course, each article 8 case is necessarily fact-specific; but, like this claim, Kiarie & Byndloss was concerned with whether an out-of-country appeal would be effective for the protection of the article 8 rights of the particular applicant and his family members. The approach mandated by Kiarie & Byndloss to such matters applies to this case. However, neither Irwin LJ (in his decision of 24 February 2017) nor the Secretary of State (in the letter of 10 February 2017) nor the Deputy Judge (in his decision of 8 December 2017) adopted that approach.
    4. These applications are directly concerned with the Deputy Judge’s decision. As I have described, the Deputy Judge considered that the challenge to the 10 February 2017 certification decision was late, in that the judicial review was not lodged until 13 September 2017 (and, as a consequence, not issued until 25 September 2017), four months after the expiry of the three month period in which such claims are to be issued as prescribed by CPR rule 54.5. The Deputy Judge considered Kiarie & Byndloss to be distinguishable and irrelevant, so that there was no reasonable explanation for the delay.
    5. Mr Gill has put forward a number of reasons for the delay, which, he contends, make it reasonable. Some I do not find persuasive. For example, he submits that the Applicant did make an application within time, because he sought to amend his grounds of judicial review in February 2017. However, as the Applicant well-knew, that application was not dealt with on its merits at that time. Of no greater force is the allied submission that the Applicant thought that the Court of Appeal had agreed that Irwin LJ’s refusal of permission to appeal could be reconsidered at an oral hearing, at which the subject of an amendment of the pleading could also have been considered. The Applicant, who was legally represented, should have appreciated that there was no right to any reconsideration of Irwin LJ’s order, no matter what the out-of-date rubric of the form said. In any event, that could not have accounted for the delay in issuing proceedings to 25 September 2017, which was four months after the corrected order of Irwin LJ was served on the Applicant’s solicitors.
    6. The proper approach to an extension of time in the circumstances of this case is that set out in respect of relief from sanctions in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537[2014] 1 WLR 795 and Denton v TH White Limited [2014] EWCA Civ 906[2014] 1 WLR 3926. It involves three stages.
i) The court must first identify and assess the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order, taking into account the materiality of the breach including its effect on the conduct of the litigation and of litigation generally. If the breach is neither serious nor significant, then the court will likely grant relief.
ii) If it is serious and/or significant, then the court will consider why the default occurred. If good reason for the breach is shown, then again relief will usually be granted.
iii) Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application, giving particular (although not paramount) importance to the factors in CPR rule 3.9(1), i.e. the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.
  1. In this case, the delay was lengthy – I accept that it was serious and/or significant – but the overwhelming reason for it was the change in the law as properly understood after Kiarie & Byndloss. After the Supreme Court judgments were handed down, the Applicant wrote a pre-action letter to the Secretary of State within about six weeks. I accept that that was not focused on the 10 February 2017 certification; but the Secretary of State did not then, and has not subsequently, made any great issue about that. In considering the time taken to issue proceedings, the fact that the Applicant’s solicitors had to take instructions from abroad has to be taken into account.
  2. In all the circumstances of the case, I would not bar the Applicant’s claim for judicial review on the grounds of delay. I would give him the necessary extension of time so that his claim is in time.